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IN THE HIGH COURT OF BOMBAY
S.S. Nijjar, J.
Adi S. Mehta..... Plaintiff.
Versus
Adil G. Illava......Defendant.
Notice of Motion No. 380 of 1995 in Suit No. 329 of 1995, decided on 4-3-1997.
Advocates appeared :
F.E. Devitre with S.J. Kathawala and Virajit Tulzapurkar i/b Federal and Rashmikant , for the plaintiff.
A.G. Katki with A.K. Goel, for defendant.
Section 41 (As amended in Maharashtra by 1975 Act)-Recovery suit for immovable property-Use of word licence or licensor lacking in plaint-Defendant a rank trespasser-No right title or interest in property-Declaration by Dept.-Jurisdiction lies to High Court to try such suit-No doubt, it is held that the defendant was a licensee then the suit could only be entertained by the Small Causes Court counsel for the plaintiff has relied on number of decisions in reply to the submissions made by the counsel for defendant No. 1. It is submitted by the counsel for the defendant that for the purpose of the determination of the issue of jurisdiction the same has to be determined with reference to the averments made in the plaint. A reading of the plaint shows that the word licensee/licensor do not appear throughout. As noticed above, it is stated that defendant is a rank trespasser. Apart from this counsel has again referred to the declaration in which the defendants themselves have stated that they have no right, title or interest in the property. In these circumstances counsel has submitted that this suit has been filed for recovering possession from a trespasser. It was held that this Court has the jurisdiction to entertain and try this suit. Reference in this connection may be made to the judgment of the Supreme Court given in the case of Abdulla Bin Ali v. Galappa, AIR 19R5 SC 577.
Section 41 (As amended by Maharashtra Act, 1975)-Jurisdiction of High Court to try suit for recovery of immovable property-Defendant stated to he rank trespasser-No mention of licensee or licensor in plaint-Defendant admitted in writing that he had no right title or interest in property-Held, High Court has jurisdiction to try suit.-No doubt, if, it is held that the defendant was a licensee then the suit could only be entertained by the Small Causes Court. Counsel for the plaintiff has related on number of decisions in reply to the submissions made by the counsel for defendant No. 1. It is submitted by the counsel for the defendant that for the purpose of the determination of the issue of jurisdiction the same has to-be determined with reference to the averments made in the plaint. A reading of the plaint shows that the word licensee/licensor do not appear throughout. As noticed above, it is stated that defendant is a rank trespasser. Apart from this counsel has again referred to the declaration in which the defendants themselves have stated that they have no right, title or interest in the property. In these circumstances counsel has submitted that this suit has been filed for recovering possession from a trespasser. That being so, this Court has the jurisdiction to entertain and try this suit. Reference in this connection may be made to the judgment of the Supreme Court given in the case of Abdulla Bin Ali v. Galappa, AIR 1985 SC 577.
(INDIAN) PENAL CODE, 1860.
Section 21 (12) (a)-Public servant-An advocate appearing on behalf of Government In a case-Does be becomes public servant-Held, No.
When an advocate is engaged by a government official he has no duty prescribed by such engagement or under the statute in relation to such engagement. An advocate so engaged does no other work except as an advocate, and that is no public duty. He is free to return the brief at any time. He is free to appear against the government in the very next case. The engagement, if any, is only to act as an advocate. But, in the case of a Public Prosecutor or a Government Pleader, it is the office that makes him a public servant, Court thinks that makes all the difference.
2.This Notice of Motion has been taken out for the appointment of a Receiver of the suit flat with power to take possession of the flat from the defendant and put the plaintiff in possession of the suit flat on such terms as this Court deems fit and proper. Prayer for injunction as against the defendant is also made. Claim of mesne profits in the sum of Rs. 20,000/- has also been made.
3.In the year 1950 one Shavaksha became the tenant of the suit premises. He passed away on 13th January, 1968. He was residing in the said flat along with his wife and his son (plaintiff). His wife Goolbanoo thereafter became the tenant of the suit flat. She also passed away on 2nd October, 1987. The plaintiff is the son of Shavaksha and Goolbanoo. He migrated to England in the year 1958. Although he was in England the rent has been paid by him since 1990. In the year 1969/70 the mother of the plaintiff also went to England. While she was staying there she requested Jerbanoo to look after the flat. Jerbanoo is the sister of Goolbanoo. She is the maternal aunty (Mausi) of the plaintiff. At that time Jerbanoo was a widow, her husband Kaikobad having passed away on 1st July, 1966. Jerbanoo and Kaikobad had four children. Two of them who are relevant for the purpose of this Notice of Motion are Kushroo (son) and Katie (daughter). Kushroo has migrated to Germany and Katie is in India. Katie was married to one Godrej Illava. Katie and Godrej Illava had two children being Adil G. Illava (son) and Dhunna (daughter). Adil is presently in occupation of the suit flat. He is the defendant in the present suit. Dhunna was also staying in the suit flat for some time but is now living elsewhere after marriage.
4.The flat admeasures 900 sq. ft. It consists of a common verandah, one hall, one bed room, kitchen, bath room, W.C. There is a rear passage in between the kitchen, bath room, W.C. on the one side and the hall and the bed room on the other side. There are connecting doors between the hall and the rear passage as also between the bed room and the rear passage. On 20th February. 1986 defendant along with the grandmother Jerbanoo, mother Katie and sister Dhunna executed a declaration before the Notary Public. This declaration is on stamp paper in the sum of Rs. 5/- . The declaration is written on both sides of the stamp paper and continues on to page 3 which is on ledger paper. The signatures of all the deponents appear on page No. 3. They are identified by Mr. K.R. Kampani, Advocate, High Court, Bombay. Notary, P.H. Talsania, who has also appended his signature at the bottom. All the deponents have thereafter signed the register of the Notary.
5.According to the plaint, the plaintiff decided to return permanently to Bombay in or about June, 1991. Therefore, in February, 1992 he requested the defendant, his mother Katie and sister Dhunna to vacate the suit premises. The defendant refused to vacate the said premises. The plaintiff again came on a visit to Bombay in November, 1994. By his Advocate's letter dated 21-1-1995, he once again called upon the defendant to vacate the suit flat. Defendant, however, has not vacated the suit flat. The mother, however, is living with her husband Godrej
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